2.Preliminary Penalty-Phase Charge Conference — Aggravating and Mitigating Factors
44 linesMR. BRUCK: Well, we did some very brief pleading, along with the mitigating factors, asking the Court not to include what would be a very lengthy list of aggravating factors and then a relatively short list of mitigating factors in the preliminary instructions. The Court obviously has discretion to do it either way. But thinking about this case, we think it would be quite unfair and imbalanced to include the aggravating and mitigating factors in the preliminary instructions, and the primary reason for that is that the jury has already had the evidence of the government's aggravating factors. They're going to add some victim impact testimony, and that will be new, but by and large everything that is alleged in their list of aggravation the jury has already heard, so it will click with the jury. You will read those aggravating factors, and they will go, "Got it."
Our mitigating case has not been heard except for little dribs and drabs that we were able to put in to correct what we thought were misimpressions in the guilt phase. But by and large, these are mere allegations, and it -- it seems quite unfair to have the jury start this sentencing process by hearing proven allegations from one side and unproven allegations from the other. It has an appearance of symmetry, but if you think about it for a moment, there's no symmetry at all.
I understand that Judge Sand's pattern instructions do provide to include the mitigating and aggravating factors, but they're not -- it's not essential. It's not a core aspect of those instructions or any other. Simply to say that the parties will present evidence of mitigation and aggravation and at the close of the evidence the jury will be instructed on exactly what those are, the jury didn't have the indictment read to them before the beginning of the trial. They were just generally told what the charges were and told to listen to the evidence, and the specifications were given to them at the end. We think that's how this ought to be done.
MR. WEINREB: Your Honor, we disagree, at least with respect to the aggravating factors. You proposed --
THE COURT: Just to shortcut it, I'm not sure he's objecting to that. In other words, let me clarify because that was a question I was going to ask. Do you object to the inclusion of the aggravating factors if the mitigating factors are omitted?
MR. BRUCK: Well, that creates a different problem --
THE COURT: Right.
MR. BRUCK: -- which is also imbalance.
THE COURT: Why I put them in there.
MR. BRUCK: The aggravating factors are not controversial. It's not that the government in this particular case is really going to be prejudiced in any way, shape or form. Some of them are built right into the charges of conviction. And so there's no -- it's not as though the jury is going to miss the evidence that they need if they haven't been read a three- or four- or five-page list of aggravating factors. So we just think the Court ought to give the instructions that provide the framework of what they're about to hear and get the specifications at the end. So, yes, we would object to doing it either way.
MR. WEINREB: Your Honor, virtually the entire bulk of the Sand's proposed instruction, which is the one that both parties have previously agreed could be given pretty much verbatim, is all about the difference between threshold aggravating factors, statutory aggravating factors and non-statutory aggravating factors, which the government has to prove in order to go from one to the next and so on. We absolutely believe the jury needs to be told this, that they need an explanation of what the penalty phase is all about and what their job is, what their task is during the penalty phase.
Unless threshold aggravating factors are proven, they don't go on to consider anything else. Unless one of the statutory aggravating factors is proved, they don't go on to consider non-statutory aggravating factors. Non-statutory aggravating factors play a different role, a selection role in terms of whether the death penalty -- not eligibility for the death penalty, but whether it should be given or not. They absolutely need to know what that sequence of findings they need to make is, and they need to know which are the threshold factors, which are the statutory aggravating factors and which are the non-statutory aggravating factors.
I think it is hardly self-evident to them what all of that is going to be, on the contrary. Even for a lawyer who's not a death penalty lawyer, it takes a lot of study to understand the whole framework, and the jury's going to have to absorb it very rapidly.
So we would very much object to the elimination of that from the instruction, not to mention that the government will be mentioning all of these factors in its opening statement anyway, so they're going to hear them whether they hear them initially from the Court versus from us; however, we don't intend to try to supplant the Court and instruct the jury at length on what the law is. That's not appropriate. It's not our job. And that runs other risks that we would prefer not to run.
We would vastly prefer that the Court do what it proposed to do and both parties agreed that it could do, which is give an instruction that is a tried-and-true instruction and is the one given in many cases because it is well accepted.
As for the mitigating factors, the reading of the mitigating factors to the jury, I'd just note that the government runs the same risk in every case. It's very often the case that the jury is told what the charges will be, what the allegations are that the government will seek to prove. Sometimes it doesn't prove them, and sometimes counts get struck at the end of a case. Sometimes there's a Rule 29 motion; sometimes counts are dismissed. There may be -- in a conspiracy case, there may be overt acts that are read to the jury and never proved. So I don't think that that is so great a risk in a case that creates so great a risk of prejudice that they need to be withheld from the jury for fear that one or more of them would be proven.
MR. BRUCK: Very briefly, your Honor, I just think the Court would do best to approach this from a realistic and common sense point of view. Yes, the verdict forms are complicated, but in this case they present no real challenge of any sort. A jury that worked their way through the verdict form in this case without being prepped about how many special findings and special verdicts and guilty verdicts and sub-verdicts they were going to have to come up with is more than capable of receiving the detailed instructions at the end of the case.
THE COURT: Okay. I'll think about it.
So I guess as I understand it, the government obviously will open, and the defense has not decided whether it will open on Monday or defer until the beginning of its case.
MR. BRUCK: That's correct.
THE COURT: Let me ask you about foreign witnesses who may testify by video. Can you tell us who those are?
MS. CLARKE: Well, your Honor, we have looked at those again and decided to not call anyone by video. And we had -- the one witness that's at issue for us right now is Elmirza. We thought that he was going to be approved for parole. He was -- he's fluent in English. He's lived in this country. And we thought he was going to be approved for parole, and we learned, I think yesterday, he is not. We would like to ask the Court to intervene and assist with that.
But as to the other potential video witnesses, we have decided not to rely on their testimony. So he's the one at issue that --
THE COURT: But he might be videoed?
MS. CLARKE: Well, we're going to have to figure out how to video him if we can't figure out how to get him to the United States.
THE COURT: Where is he?
MS. CLARKE: He's in Kazakhstan.
THE COURT: Just a trivial matter, but I see who he is from the list.
What's the time difference? Do you know offhand?
MS. CLARKE: I can't remember.
THE COURT: Eight or nine hours?
MS. CLARKE: Seven or eight hours.
THE COURT: I was going to guess eight, but okay. As I say, I'm just curious.
MS. CLARKE: It's off of us.
But that's the one. And we -- I think we're going to ask the Court to intervene on due process grounds and assist us, and perhaps the government can assist as well. There was some discussion that he was going to be approved and at the last minute was not.
THE COURT: Okay. Now, I presume you've each exchanged the list, the exhibit list and so on and so forth. Let me -- so does that include the exhibits themselves as well to the extent they're new exhibits?
MS. CLARKE: Yes.
THE COURT: They've been exchanged?
MR. CHAKRAVARTY: We haven't looked at them, but we just did.
THE COURT: Okay. Are they in JERS form?
MS. CLARKE: I sure hope so.
COURT CLERK: I got them from the defendant, but I'm still waiting for the government's.
THE COURT: Okay. All right. But you think so?
MS. CLARKE: Would you repeat that last statement, please, that you do have them from the defense but you're waiting for the government's?
THE COURT: Why? Because it's so odd?
(Laughter.)
MS. CLARKE: Oh.
THE COURT: I don't know if it's that odd, actually.
MS. CLARKE: And we were also here early, your Honor.
THE COURT: Yes, I noted that, by the way.
And with respect to witnesses, I assume this is a comprehensive list and we don't have to expect 74 defense witnesses?
MS. CLARKE: Yes. And if I could prevail on the Court again, it really puts us -- our case at great risk by publication of this list. We were overinclusive, even last night began to discuss a couple that are not likely witnesses. And it certainly would be helpful to us not to have this be public until we've made some more decisions and provided the Court with a revised list.
We also included in that list a little summary of, you know, what the relationship to the case was. I mean, that really is kind of discovery, and we provided it to the Court out of courtesy to the Court because the Court asked for it, not so that the --
THE COURT: Well, I will agree that in the form that it is, where it has the commentary, it's different than just a witness list. I'll agree with that. Of course, I presume all these people have been listed on Question A to the questionnaire? Or Exhibit A and B, I guess, to the questionnaire?
MS. CLARKE: That's so long ago, I hope so.
THE COURT: Anyway, all right.
MS. CLARKE: So if we could ask the Court to at least reconsider that or delay production until we can at least trim it slightly more so that we don't put people who may not be witnesses -- expose them to the public.